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Thursday, June 27, 2013

The Supreme Court didn't propound another Roe v. Wade on Wednesday and discover a constitutional right to gay marriage, but it did take a major step toward it. The saving grace for democratic consensus and self-government is that the marriage debate can now continue in the states, if our judges will allow it.

That's our reading of two 5-4 rulings that saw the High Court range from its most restrained to aggressive activism in overturning the Defense of Marriage Act (Doma), a federal law defining marriage as between a man and a woman. Lower courts will be navigating through the mess for years.

The restraint came in Hollingsworth v. Perry, where the Court was asked to issue a judicial edict expanding traditional one man-one woman unions to include gays and lesbians for all 50 states under the Fourteenth Amendment's guarantee of equal protection....

And continuing with the DOMA decision:

A different Court majority leapt in the opposite direction in the 5-4 ruling written by Justice Anthony Kennedy in U.S. v. Windsor, which overturned Doma. Section 3 of that 1996 law signed by Bill Clinton adopted the traditional definition of a spouse for federal purposes like taxes and Social Security.

Our view is that Doma was an understandable political response at the time to state court rulings on gay marriage, and adopting a uniform federal rule was a temporary solution as states experimented with new arrangements and a social consensus evolved. Congress was always free to revise Doma later.

A different Court majority leapt in the opposite direction in the 5-4 ruling written by Justice Anthony Kennedy in U.S. v. Windsor, which overturned Doma. Section 3 of that 1996 law signed by Bill Clinton adopted the traditional definition of a spouse for federal purposes like taxes and Social Security.

Our view is that Doma was an understandable political response at the time to state court rulings on gay marriage, and adopting a uniform federal rule was a temporary solution as states experimented with new arrangements and a social consensus evolved. Congress was always free to revise Doma later.

But the majority overturned Doma with a confusing combination of logic that mixed principles of federalism with language about equal protection. On the one hand, Justice Kennedy and the four liberal Justices called Doma an illegal federal intrusion on the traditional state power to regulate marriage. On the other hand, they also described Doma as motivated by animus toward gay couples that violates the federal guarantee of equal protection.

The High Court's equal protection jurisprudence typically applies a different level of constitutional protection to discriminatory laws, known as strict or heightened scrutiny. Other laws are merely evaluated using a "rational basis" test. But Justice Kennedy never even mentions this basic question. He then goes on to make a due process argument under the Fifth Amendment about treating citizens one way under state law and another under federal law. The result is a legal muddle.

The opinion is so confusing that it inspired a highly unusual debate among the dissenters about what it means. Chief Justice John Roberts wrote his own dissent to note that while the majority "goes off course" in overturning Doma, it "is undeniable that its judgment is based on federalism." This would mean Windsor applies only to federal law, and the states are free to continue debating marriage.

But in his dissent, Justice Scalia is scathing about Justice Kennedy's "legalistic argle-bargle" and suggests that the equal protection language of the opinion means that some future case will require the Court to prohibit states from banning same-sex marriage:

"It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it." Tell us how you really feel, Mr. Justice.